Email & Governance: A Good Fit?

If you think about it, over the last 10 to 15 years, the explosion of the internet and electronic communications has drastically changed our lives and how we do business. I actually remember when I dictated documents, my legal secretary literally made carbon copies when typing on her IBM Selectric and we used a fax machine to expedite communications. The pervasiveness of email communications has not only revolutionized the practice of law, it has changed the way we live our lives and how many boards of homeowners’ associations (“HOAs”) govern.

Is it a good thing when boards hold discussions and make decisions via email on issues affecting their associations? In my opinion – not so much. Here are my thoughts:

■ When a board has to address an emergency situation, utilizing email to communicate on the issue and take action outside of a meeting is necessary and appropriate.

■ When boards utilize email to debate issues that are of interest to their members and are not an emergency, the board is not acting in a transparent manner. Members of the association are not privy to these electronic debates and do not have the benefit of attending a meeting to hear the directors they elected fully vet important issues. While it’s true that in many associations residents do not attend board meetings, the fact that they have a right to attend these meetings is key.

■ When boards do not act in a transparent manner, some residents of their communities will jump to the conclusion that they acting in a nefarious manner. While that’s rarely the case, it’s important to remember that perception is reality for these folks.

■ When boards govern through email communications, these emails are records of the association. As a result, members of these communities have a right to request and examine these records. Obviously, there are practical challenges associated with producing email communications.

■ If we are being honest with ourselves, we have to admit that we put things in emails that we would never say in an open meeting. These types of communications will come back to haunt the individuals who are privy to them.

■ If you are a director of an association and use your personal email address to communicate on association business, do not assume that use of your personal email will give you any right to privacy. Courts in Colorado have ordered directors to produce email communications sent from their private email addresses. If you are going to conduct business via email, establish an email address that you will use exclusively for association business.

I know it’s unrealistic to expect that boards will stop utilizing email to communicate. However, I highly recommend that you use email thoughtfully and sparingly.